www.elsblog.org - Bringing Data and Methods to Our Legal Madness

04 October 2006

The Divide Still Divides

In contrast to rush-hour traffic in Chicago, the intersection of empirical research in law and political science remains pretty empty. Deep, institutional, problems remain that provide major obstacle to change. Let me explain.

Writing six years ago, I noted that legal academics were blissfully ignorant of social science literature on courts. I argued that this was a function of their training, their professional culture, and the insulation of intellectual life in the legal academy.

I agree with Frank Cross that the situation has improved . That is, there are now small numbers of legal academics who are trained in the social sciences and who are competent users of social scientific methods. As a caveat, economics needs to be put to the side. For several decades there has been a cadre of J.D./Ph.D.’s in economics who have brought the tools of their training to the study of the law. But the number of legal academics with training in other social science disciplines remains tiny. I find it telling that I personally know most of the contributors to this Empirical Legal Studies blog and had the pleasure of teaching most of its founders and some of its most prolific contributors. That may be touching but it doesn’t say much for the depth of social science research in the legal academy. The Marines may be looking for a “few good men” but to mesh the two fields requires substantially more than that.

Frank suggests that legal academics are “much better attuned to political science research than they were...” While something is better than nothing, and it would be very hard for legal academics not to be better attuned, my impression is that little has changed. Hiring a single faculty member won’t do the trick. The culture of scholarly inquiry needs to be changed. It would be interesting to think of ways this could be measured. Simply asking legal academics if they read social science literature on courts doesn’t probe deeply enough. Perhaps students of culture who read this blog have some ideas.

Frank asks if the disciplines should differ. My answer is an
unqualified yes. To the extent that legal academics are trained (and
that may be a topic for another forum), they are trained to do
doctrinal analysis. Social scientists are not trained to do that. The
problem emerges when legal academics take on social science questions
without the background, training, or knowledge to think about them or
study them in productive ways. The default position is simply to
assert “legal truths” as the legal literature has done for decades.
And if these “truths” have no empirical support and indeed are
contradicted by decades of social science research, no worries because
most readers won’t be aware of this.

Frank also asks why political scientists are so insightful, although
he chooses different language to ask the question. As I suggested back
in 2000, part of it, no doubt, has to do with envy for the high
salaries and other perks that come with being a Professor of Law rather
than a Professor in the Social Sciences. But I like to think that most
of it comes from legal scholarship that ignores relevant social science
work. It is one thing to have work examined, discussed, and criticized
but it is quite another to research and write without any knowledge of
major fields of work.

This leaves the great Leninist question, what is to be done? There
are a variety of steps that can and are be taking. This blog is one
forum where social scientists and legal academics interested in social
science can share work. The initial Conference on Empirical Legal
Studies meeting in Austin, Texas later this month is also a good step.
The popular press may play a role as well. In the last year or two
outlets such as the New York Times and National Public Radio
have begun to interview social scientists who study courts when looking
for insight about courts. In particular, the work of Lee Epstein (now
at Northwestern Law School!) and Jeff Segal and Harold Spaeth has been
presented in the Times. If the press comes to realize that
social scientists can help its audience better understand courts, legal
academics may see merit in what social scientists have to say.

Ultimately, however, I remain pessimistic because of the
institutional structure of the legal academy. Within most universities
law schools are a world unto themselves. They are often physically
removed from the main campus. Too few legal academics interact in
intellectually vibrant ways with colleagues in the social sciences.
While I trust the days are gone when I was told at the University of
Michigan Law School that I was at a first-rate law school surrounded by
a second-rate state university that I ought to avoid, there is still
far too little on-going interaction. This is perhaps because there are
no incentives to do so. As long as law reviews are student-edited and
not peer-reviewed, and as long as the route to tenure and promotion is
through law review publications, the incentives to confront and master
social science scholarship remain low. With very few exceptions legal
academics publish all their work in law reviews. In a quick review of
the contributors to Law & Society Review over the last
decade and a half, for example, I found almost no contributors who were
trained solely as lawyers. Those few scholars trained in law whose
work was published were almost always holders of doctorates in social
science fields. In sum, I don’t think social science research will be
taken seriously in the legal academy until the structure of the legal
academy is changed.

Comments

Despite my penchant for the academic, we must admit that the major thrust of legal education is not to train future legal academics (cf., Solum's very articulate response to Frank Cross on Legal Theory Blog). So I am somewhat skeptical--though perennially hopeful--that law schools will jump to the social science framework before the legal profession wants the jump to happen. Until the top firms and judges start to put pressure, both financial and w/r/t hiring graduates with fantastic empirical skill, on schools, the rate of change towards social science will be slow. I’m interested in the likelihood that this pressurization will happen at lower ranked schools that are in greater competition for recruiters—assuming inelastic demand for graduates at the top institutions.

That said, perhaps the disconnect that can be addressed in our discussion of Interdisciplinary Ignorance v.2.0 is the as yet unspecified relevance of social science to the practicing lawyer.

Assuming that the training of lawyers is the main—if not the only—focus of legal education, how does the social scientific perspective add to a burgeoning lawyer’s professional development? I’ve posted on this blog about the potential for social science pedagogical dominance in the field of evidence. Just take a look at McKlesky v. Kemp and you’ll find proof that the Court needs remedial statistical help. The voting rights cases offer another fine demonstration.

Appellate advocacy also seems to me an area rife with benefits to the attitudinally savvy advocate. Repackaging arguments for ideologically motivated jurists—rather than insistence on a staid formalism—could produce some substantially better returns for clients. Ditto for CoA panels vis-à-vis en banc review.

Professor Rosenberg highlights the institutional structure that restricts social scientific approaches from gaining traction in the halls of laws. Physical distance is a factor—though I suspect a minor one. The concomitant psychological distance likely plays a greater role. Law reviews as outlets for legal scholarship are enormously important in my opinion, and until the tenure committees begin looking to peer reviewed journals as the benchmark for scholarly worth, the demand for social scholarship approaches will be retarded.

But I’m advocating a social science from the trenches perspective as the pitch that might get disillusioned legal academics (and law school administrators) to buy the scholarship we are selling.

As usual, Gerry raises awfully good points, as does Frank in his earlier post. Although much warrants discussion, I'll dwell only on Gerry's conclusion (of pessimism) and take a brief stab at arguing the opposite (optimism). Before I do so, however, I'll stipulate to the proposition that changes to the legal academy's "institutional structure" and the "culture of scholarly inquiry" are difficult to operationalize and measure, to say the least.

The scholarly climate in law schools (or, more accurately, in some law schools) is changing and institutional structural shifts--even if just subtle ones--express these changes. Peer-reviewed publications (and university press books) are increasingly common and important for P&T purposes; multi-disciplinary training and interaction are desired and not merely tolerated; the number of joint appointments (despite frequent logistic complexities) continues to rise. Have any of these changes reached a critical mass--however defined--in law schools? Certainly not. That said, the direction of the changes and its consistency are important and inform predictions about the future. Moreover, when the desired change involves institutional structure and scholarly culture, small, incremental steps and progress should be expected. Finally, the factors driving these changes are interactive.

Again, I do not challenge the validity of Gerry's pessimistic conclusion. Ample evidence supports it. My smaller point (and, alas, perhaps it's a naive one) is that I find enough counter-evidence of change to plausibly support optimism. While the law and political science intersection is nowhere near grid-lock (rush-hour, Chicago style), the traffic flow likely supports the installation of a sign or traffic signal.